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Bowman v. Ottney

Court of Appeals of Illinois, Fifth District

January 21, 2015

CONNIE L. BOWMAN, Special Administrator of the Estate of Char L. Bowman, Deceased, Plaintiff-Appellant,
v.
MICHAEL D. OTTNEY, Defendant-Appellee

Rehearing denied February 9, 2015.

Appeal fro the Circuit Court of Jefferson County. No. 13-L-41. Honorable David K. Overstreet, Judge, presiding.

Certified question answered in the affirmative.

SYLLABUS

The certified question presented to the appellate court pursuant to Supreme Court Rule 308 in a medical malpractice case was whether, in a case that had previously been voluntarily dismissed pursuant to section 2-1009 of the Code of Civil Procedure and then refiled, the trial court has the discretion to deny plaintiff's immediately filed motion for substitution of judge, brought pursuant to section 2-1001 of the Code, based on the fact that the court had made substantive rulings in the previously dismissed case, and the appellate court answered in the affirmative, since the courts strongly disfavor allowing " shopping" for a new judge after a party has determined the original judge's disposition toward the case, the trial court already has the discretion to deny a motion for substitution made to delay or avoid a trial, and in plaintiff's case, even though the coincidental reassignment of plaintiff's second case was to the original judge and no substantial rulings were made in the second case, the spirit and purpose of section 2-1001 could not be disregarded and attempts to circumvent the venue rule should not be condoned.

For Appellant: John J. Hopkins, John J. Hopkins & Associates, P.C., Alton, IL.

For Appellee: Brad A. Elward, Heyl, Royster, Voelker & Allen, Peoria, IL; Richard K. Hunsaker, Sara A. Ingram, Heyl, Royster, Voelker & Allen, Mark Twain Plaza III, Edwardsville, IL.

JUSTICE WELCH delivered the judgment of the court, with opinion. Justice Schwarm concurred in the judgment and opinion. Justice Stewart dissented, with opinion.

OPINION

WELCH, JUSTICE

[¶1] The underlying cause of action giving rise to this certified question on appeal is for money damages, alleging medical malpractice.

Page 734

The plaintiff, Connie Bowman, special administrator of the estate of Char L. Bowman, deceased, filed a complaint against Michael D. Ottney, D.O., and Core Physician Resources, P.C., under Jefferson County circuit court designation 09-L-28. Judge David K. Overstreet made substantive rulings in the case, such as in regards to the plaintiff's efforts to obtain materials and whether certain witnesses' opinions should be barred or limited. This court answers the certified question in the affirmative.

[¶2] On March 27, 2013, the plaintiff moved to voluntarily dismiss the claim pursuant to section 2-1009 of the Code of Civil Procedure (the Code) (735 ILCS 5/2-1009 (West 2012)). On April 1, 2013, that motion was granted without prejudice as to all defendants.

[¶3] On August 21, 2013, the plaintiff filed a new complaint under the designation 13-L-41, pursuant to section 13-217 of the Code (735 ILCS 5/13-217 (West 2012) (stating that a plaintiff who has voluntarily dismissed an action may commence a new action within one year)). The complaint alleged that " [t]his action was previously filed and voluntary dismissed on April 1, 2013," and asserted the same causes of action, but named only Ottney as a defendant. Coincidentally, the plaintiff's action was again assigned to Judge Overstreet. Prior to any rulings by Judge Overstreet, on September 3, 2013, the plaintiff filed a motion for substitution of judge pursuant to section 2-1001(a) of the Code (735 ILCS 5/2-1001(a) (West 2012)). The defendant filed an objection to the plaintiff's motion, noting that Judge Overstreet had made prior substantive rulings in the voluntarily dismissed action.

[¶4] A hearing was held on January 21, 2014. The plaintiff asserted that because this case was a new action and her motion was properly made, her right to a substitution of judge is absolute. The defendant responded that several substantive rulings had been made in the dismissed case, giving the plaintiff an opportunity to " test the waters" as to the court's inclination toward her. Noting that a growing body of law expresses concern about voluntary dismissals in the face of dispositive motions, the defendant stated that the Third District had recently ruled that a trial court may properly deny a motion for substitution of judge as of right where the plaintiff " tested the waters" in the voluntarily dismissed action.[1]

[¶5] The court noted that prior Fifth District rulings indicated that substitution would be improper, but acknowledged that no direct authority existed where a new and distinct cause of action is the subject of the motion. The court found Ramos to be " honest and persuasive" and was concerned that to rule otherwise " would allow plaintiffs to make an end run behind *** the prior voluntary dismissal, and I think that [the ruling in Ramos is] consistent with *** [the] limited cases we do have in the Fifth District." In ...


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